This blog was authored by Lisa S. Charbonneau.

Should your agency permit employees to use their available paid leave accruals prior to designating leave as Family Medical Leave Act (FMLA)-qualifying, even if your agency knows the leave is FMLA qualifying from the start?  A new Department of Labor (DOL) Opinion Letter issued by the Acting DOL Wage & Hour Administrator explains that employers that delay designation of FMLA-qualifying leave more than five days violate the FMLA.  Consistent with the new DOL Opinion Letter, employers should run FMLA once on notice of an FMLA qualifying event.

 What is the FMLA?

Generally speaking, the FMLA provides employees with the right to take up to twelve weeks of unpaid, job-protected leave per year to treat their own serious health condition or for various family care reasons, or up to twenty-six weeks to care for a covered service member.  An employee’s accrued paid leave may run concurrently with an employee’s otherwise unpaid FMLA leave.

The New DOL Opinion Letter

Issued March 14, 2019, a new DOL Opinion Letter addresses an employer’s obligation to designate leave as FMLA leave.  Specifically, the Opinion Letter explains that once an FMLA-eligible employee communicates a need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave.  That is, once an employer determines the employee’s reason for leave is FMLA-qualifying, the leave is FMLA protected, must be designated as FMLA, and thus counts toward the employee’s FMLA leave entitlement.  As the DOL Opinion Letter explains, an employer “may not delay designating leave as FMLA-qualifying, even if the employee would prefer that the employer delay the designation.”  The Opinion Letter also rescinds any prior statements in previous opinion letters that are inconsistent with the new opinion.

Application to California Employers

For California employers, the new DOL Opinion Letter clarifies employer responsibilities – especially after the Ninth Circuit case, Escriba v. Foster Poultry Farms, in which the Court held that an employee may affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection.  Importantly, the Escriba case did not hold that an employer may delay designation of FMLA leave when an employer is on notice of an FMLA-qualifying event.  Rather, the case dealt with a scenario in which an employee did not request FMLA leave and did not give sufficient information that the purpose of the leave was FMLA-qualifying.  Because the employer was not on notice that the leave was FMLA-qualifying, it did not have an obligation to designate the leave as FMLA.

The new DOL Opinion Letter is clarification that once an employer determines that a leave qualifies as FMLA, the employer should designate an FMLA-qualifying leave as FMLA leave within five days.  Even if an employee wishes to take accrued paid leave at the outset, if the employer is on notice that the leave is FMLA qualifying, the leave will necessarily count toward the employee’s FMLA entitlement and will not expand that entitlement.

What About the California Family Rights Act?

The California Family Rights Act (CFRA) follows the FMLA to the extent the laws are not inconsistent.  On this issue, CFRA is not inconsistent with the FMLA so the principles discussed above should extend to CFRA leave designations as well.

Applying leave laws is challenging.  If you have questions on how to apply the various state and federal leave laws that apply to your agency, seek advice and counsel of an experienced employment law attorney to ensure you are in compliance.